TWO opposition assemblymen and a party worker who were charged for violating the Peaceful Assembly Act (PAA) by participating in a street protest two years ago, have applied to refer their case to the Federal Court on constitutional grounds.

Kuala Lumpur High Court judge Azman Abdullah stayed the proceedings today and said he would decide on December 13 whether the case would be referred to the Federal Court.

They were charged under Section 4(2c) of the PAA for participating in the “Kita Lawan” rally in March 2015 to call for opposition leader Anwar Ibrahim to be released and for Prime Minister Najib Razak to step down.“If it goes through to the Federal Court, this will be used to challenge the PAA on constitutional grounds,” said defence lawyer Eric Paulsen.

“PAA is a relatively new law. By charging them under PAA, the authorities are in fact saying that the public cannot conduct any street protests, no matter how peaceful.

“That’s against the constitution because yes, you can restrict freedom of assembly, but you cannot prohibit it outright. So, unlike the other cases where as long as we give notice, we can assemble. But in this case, even though notice was given, we still cannot protest. So, in our view, this is wrong.”

Today, Azman overruled a request by deputy public prosecutor Jaizah Jaafar Sidek that the case proceed at High Court as they were no constitutional issues involved.

Paulsen said defence lawyers in similar cases in the past had sought to refer their cases to the Federal Court, but were told that a prima facie case should be established first.

Another case involved Sarawak Pakatan Harapan chairman Chong Chieng Jen and Stampin MP Julian Tan, who had participated in the Bersih 5 rally in Kuching, They were acquitted by the Kuching Sessions Court in September.

Paulsen said the question to be decided is whether Sections 4 (1c), 4(2c) and 4(3) of the PAA were inconsistent with Articles 8, 9 and 10 of the Federal Constitution.

Section 4(1c) says the right to organise and participate in an assembly peacefully does not extend to a street protest.

Section 4(2c) makes it an offence to organise or participate in a street protest.

Section 4(3) defines a “street protest” as an open-air assembly that begins with a meeting at a specific place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause.

In other words, whereas a stationary assembly is permitted, a moving assembly or procession is prohibited.

The right to assemble peacefully and without arms is declared in Article 10(1b) of the Federal Constitution, which states “all citizens have the right to assemble peaceably and without arms”.

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